How can I protect my Intellectual Property?

"Intellectual property" (or "IP") refers to rights in works made by inventors and other creators, such as designers, musicians, artists and authors.

Legal rights may subsist or be obtained which give the owner protection for the work for a certain period of time. This protection may be of significant value to the owner, as it may be used to prevent a competitor from exploiting the work.

IP rights fall principally into four main areas: patents, trademarks, copyright, and design rights. They also subsist in other areas including trade secrets, domain names and plant varieties.

Some rights, such as copyright, arise automatically. Other rights, such as patents, are only obtained by a process of registration. In general, registered rights provide stronger protection than unregistered rights.

REGISTERED RIGHTS

PatentsPatents protect inventions. Generally, a patent is directed to a product, apparatus, process or use, which embodies a technical innovation. Examples include chemical or biological products, mechanical devices, processes of manufacture and new uses of known substances. Other examples include computer algorithms, or applications, user interfaces, electronic devices and telecommunication protocols.

A patent confers an exclusive right on the owner to prevent others from exploiting the invention, generally for a period up to 20 years. In return, the owner provides a full disclosure of the invention. Once a patent application is filed, it is typically published around 18 months later. The application is examined to see whether it meets the legal tests for patentability prior to any patent being granted.

Registered trade marksTrade marks are signs, such as words or logos, which connect goods or services with their producer or provider. Examples include one or more words, letters, numerals, drawings, three-dimensional signs and shapes, as well as sounds, slogans, smells and tastes.

A registered trade mark gives the owner the exclusive right to use the mark in relation to the goods and/or services for which it is registered. An application to register a trade mark is examined to see whether it meets the legal tests for registration prior to the mark being registered. Once granted, a registration can usually be kept in force indefinitely, upon payment of official fees. This can be a crucial tool in the protection of your brand.

Registered designsRegistered designs relate to the appearance of an article, or a part of an article. This may be the shape of the article and/or pattern, or ornament applied to the article.

A registered design confers an exclusive right on the owner to prevent others from making the article with that design, generally for a period of up to 25 years. Only the appearance of the article is protected, unlike a patent which might protect the function of the article. The application process to register a design is generally very straightforward.

Plant variety rightsPlant variety rights protect specific plant varieties. Community Plant Variety Rights protect varieties throughout the European Union. It is also possible to obtain plant variety rights in individual countries, such as the UK. The variety must have distinctiveness, uniformity of expression of characteristics and stability of characteristics. The variety must also be novel.

Plant variety protection last for up to 25 years, except for trees, vines and potatoes, which have a period of 30 years.

Utility modelsSome countries (although not the UK) offer the option of protecting inventions using a utility model system. These are often considered as a cross between a patent and a design registration. While requirements vary from country to country, utility models are not usually available for processes, or for chemical inventions.

Utility model protection is easier to obtain than patent protection. Utility models can therefore be useful for protecting incremental inventions that would not pass the relatively stringent examination applied to patent applications. A utility model can allow an owner to prevent others from exploiting the invention. However, they have a significantly shorter term of protection (usually ten years, or less).

Domain namesDomain names serve as part of an address on the internet, allowing particular websites to be found and accessed. They can be purchased from a number of different domain registrars.

A domain name owner has the exclusive right to use that domain name. An annual fee is usually payable to the domain registrar to maintain the registration. Domain names have become an important aspect of branding and marketing.

UNREGISTERED RIGHTS

Unregistered design rightsA new design of an article or a part of an article may be protected by unregistered design rights. In the UK this applies to most three-dimensional articles where a period of protection of up to 15 years is available automatically. In the European Union there is a three-year period of protection for an unregistered design which also arises automatically.

Protection conferred by unregistered design rights is limited to actual copying of the design, for which proof is required. This contrasts with registered design rights, which are much easier to assert, because there is no need to demonstrate that any copying took place.

CopyrightCopyright is an automatic IP right that comes into being on creation of certain original works, such as literary works, musical compositions, and works of art. It can also arise for items such as computer software and databases.

Copyright can be used to prevent a third party from directly copying the work, and often extends outside of the UK, depending on whether a country is a signatory to certain international agreements. The term of protection can last for many years. For example, the copyright on written works lasts in the UK for 70 years after the author’s death.

Trade secretsTechnical information that provides a commercial advantage in relation to a product, process or use can also be kept confidential as a trade secret, or know-how. This is an option to consider, in particular where the information is of low innovative value and unlikely to lead to the granting of a patent.

Whether it will be possible to keep the information confidential is an important consideration. Unlike a patent, a trade secret will not prevent a third party from using the information, if they develop it independently.

Trade marks established through useIn some countries, as well as obtaining a trade mark though registration it is also possible to establish trade mark rights through use if it has a reputation and goodwill. It can complement the registered trade mark system by providing protection for trade marks that are not yet registered.

Trade mark rights arising through use can be used in a manner similar to a registered trade mark, to prevent others from taking advantage of an established brand. However, a registered trade mark is considered to provide stronger and much cheaper brand protection, in particular since the owner does not bear the burden of proving use and reputation in the trade mark.